CASE STATUS AND PRE-TRIAL REPORT – CONSTRUCTION DEFECT
The purpose of this report is to provide Latent Property Damage Group (“LPD”) with pertinent, relevant and all-inclusive information to take into consideration to evaluate the overall case and in preparation prior to upcoming mediation and trial. The form of this report should be adapted with headers and sub-headers based on the needs of the case. The creator of this report should not be hindered nor fail to give information for lack of a section/header/sub-header. This form is only a foundation for a solid, well-tailored and prepared report. Please refrain from restating any previously provided detailed summaries of depositions and/or reports.
The Case Status and Case Assessment sections of this report should be completed within ninety (90) days of assignment and updatedas the case develops. Thirty (30) days prior to mediation, counsel should update the report and address the Pre-Mediation section. Sixty (60) days prior to trial, counsel should update this report and address the Pre-Trial section.
Date of Report:
Nature of Report: __ Case Assessment __ Pre-Mediation__ Pre-Trial
CASE STATUS
Please update as needed, and note your changes from prior reports in bold.
Insured/Client:
Case Caption:
Venue (Court/County/State):
Trial Date and length (or anticipated date):
Defense Counsel:
Plaintiff Counsel:
Counsel/Firm for other Parties:
Defendant / Defense Counsel / Scope of Work / Carrier Information (if known)Project Information: Include the type of construction (i.e. Single Family Home, Condo, Commercial, etc.), number of buildings, number of units, dates of construction, etc.
Insured/Client’s Involvement: Please provide a brief summary of insured/client and involvement in the project (i.e. what did they do, etc.)
Procedural Posture: List all claims, cross claims, counterclaims and third party actions against the client:
Brief Summary of Client’s Liability and Damages:
Current Demand: Include global demand along with any specific demand to the Insured/Client
Current Offer: Include any global offers along with any direct offers from the Insured/Client
Budget: Please provide a budget for all defense activity up to but not including trial. Make sure to include all potential costs including but not limited to expert costs, filing fees and deposition costs.
Recommendations: Provide recommendations on how to proceed, including but not limited to potential cross claims, motions and settlement authority requests.
CASE ASSESSMENT
I.STATEMENT OF FACTS
Describe the uncontested facts relevant to the case.
- STATEMENT OF LIABILITY
Plaintiff Liability Case:
Provide an overview of the plaintiff’s liability allegations, the causes of action/elements and burden of proof. The statement of liability for each cause of action should:
Analyze the evidence the plaintiff will present to prove its allegations, including lay testimony; and
Identify all expert witness, and address the impact of expert reports and testimony.
Liability Case(s) of Other Relevant Party(ies):
Discuss other parties with third-party claims, counter claims or cross claims against the client, or parties whose claims or defenses are relevant to the client’s defense.
Provide an overview of the liability allegations, the causes of action/elements, and burden of proof for any party that has alleged cross claims or counterclaims against the client. The statement of liability for each cause of action should:
Analyze the evidence the party will present to prove its allegations, including lay testimony,
Identify all expert witnesses and address the impact of expert reports and testimony; and
- Identify all defense counsel for other relevant party(ies), including name, background, and trial experience.
Common Defense Issues:Note any defenses that apply to all defendants, including the statute of limitations/statute of repose.Identify any defendants that have settled at this time, and describe the terms of the settlement, if known.
Defense Liability Case:
Provide an overview of the client’s defenses to each cause of action addressed above.
Analyze the client’s affirmative defenses, its elements, and the burden of proof.
Analyze the client’s counterclaims, cross claims, or third party claims, if applicable.
The discussion of strategy for each defense, affirmative defense, or affirmative claim should:
Analyze the evidence you will use to defeat or mitigate the allegations and evidence above, including lay testimony; and
Identify all expert witnesses and address the impact of expert reports and testimony.
- Identify any opportunities to transfer risk to other parties.
Theories of Liability:State the jurisdictional standards at issue in the case such as joint and several liability, comparative/contributory fault, etc.
Trends:Identify and discuss any relevant trends in similar cases.
Anticipated Outcome:Based upon the foregoing, analyze the expected outcome of each cause of action alleged against the client and quantify by percentage. Do the same for any affirmative claims the client may have.
Estimate the allocation of fault against all parties and non-parties the jury is likely to reach.
- STATEMENT OF DAMAGES
Plaintiff’s Damages:
State the total amount of damages the plaintiff seeks to recover.
Identify how the plaintiff calculates its damages, whether by cost to repair, diminution in value, or other method.
Identify the damages the plaintiff seeks to recovery for property not otherwise damaged (e.g., to bring property into compliance with building codes).
Identify any other damages the plaintiff seeks to recover, including but not limited to loss of use, business interruption, punitive damages, etc.
Please include a comparative breakdown of the following:
- Plaintiffs overall Defect and Cost to Repair for entire Project vs.
Plaintiffs Defects and Cost to Repair relating to issues with our insured; and
- Developers Defects and Cost to Repair relating to issues with our insured vs.
Our insured’s experts finding on Defects and Cost to Repair
- Proposed allocations to various parties in the action
Plaintiff’s Experts: Please provide a listing of the experts
Plaintiff Damages Case: What evidence will be presented to prove damages, including relevant witnesses and their testimony?
Defense Damages Case:What evidence will be presented to defeat or mitigate the damages and/or causation, including relevant witnesses and their testimony?
Plaintiff’s Costs and Fees:Address whether the plaintiff (or cross claim/third party plaintiff) is entitled to costs, fees, or attorney’s fees from the client, if applicable.
Status of Settlement Negotiations:
This section should include the history of offers, demands with dates; and should also include comments if appropriate on statutory offers of judgment or proposals for settlement, explaining the jurisdictional consequences.
PRE-MEDIATION
No later than thirty (30) days prior to mediation, update the Case Status and Case Assessment sections of this report, address this Pre-Mediation section and provide to the handler.
Date/Time/Location: Include whether or not claims handler needs to be physically present
Mediator: Provide name and describe background and experience.
Prior Mediation(s)/Negotiation Status:If there was a prior mediation please include a brief synopsis. Please include brief history of offers
Anticipated Outcome: What do you anticipate happening at mediation?
PRE-TRIAL
No later than sixty (60) days prior to trial, update the Case Status and Case Assessment sections of this report, address this Pre-Trial section and provide to the handler.
- TRIAL, VENUE AND COUNSEL INFORMATION
Trial Type:Identify whether trial will be heard by a jury or a judge.
Judge:Provide name and describe background and experience.
Jurisdictional Information:For example-Is there Joint Several liability and how will this impact the case?
Counsel for Plaintiff:Provide name of the attorney expected to try the case with a description of his/her background and trial experience.
Counsel for Defendant:Provide name of the attorney expected to try the case with a description of his/her background and trial experience.
Counsel/Firm for other Parties:For other parties with third party claims, counter claims or cross claims against the client, or parties whose claims or defenses are relevant to the client’s defense, provide name and describe background and trial experience.
- EVIDENTIARY ISSUES & TRIAL PREPARATION
Discovery Deadlines:
Other Deadlines Currently Known:Include disclosure/designation of experts, statutory offers, etc.
Evidentiary Issues:Provide an overview, assessment and recommendations regarding evidentiary issues that are expected to impact the resolution or handling of this case.
Identify any exhibits or testimony that may face a serious challenge on admissibility, and analyze the potential impact on the case.
Motions:Identify all pending and anticipated motions, including motions in limine.
Planned or Scheduled Events:Include meetings, hearings, depositions, settlement conferences, mediations, etc. and expected dates of completion
The Jury: If trial will be conducted before a jury:
- Describe the anticipated jury pool/panel;
- Describe the venue’s procedures for voir dire;
- Comment as appropriate regarding anticipated jury instructions;
Appellate Issues: Identify any issues likely to form the basis of a future appeal, of applicable.
Liens and Set-Offs:Identify and list liens such as Medicare, hospital, child support, worker’s compensation, etc. and collateral source set-offs, etc.
Defense Costs and Fees:Provide an updated budget of anticipated costs and attorney fees (for Staff Legal use “unit rates” instead of “fees”) that will be incurred from the present through trial.
- CASE EVALUATION
Plaintiff’s verdict: Assign a percentage to the likelihood of a plaintiff’s verdict. Provide a value or range of values for the damages that would be awarded in the event of a plaintiff’s verdict.
Defendant’s verdict: Assign a percentage to the likelihood that no liability will be assigned to the client.
Most likely outcome:What do you believe is the result the jury is most likely to decide? Provide a value or range of values for the damages awarded to the Plaintiff in this scenario and how this figure would be allocated among the other parties. If several outcomes appear to be equally likely, please address these as well.
Pre/Post Judgment Interest:Discuss the availability of pre or post judgment interest, how such interest would be calculated, and how it would impact the above verdicts.
VII. SETTLEMENT VALUE AND RECOMMENDATIONS
Global Settlement Value:Please provide a value or range of values that you believe would be a reasonable global settlement and comment as to whether such figures are likely to resolve this matter.
Client’s Settlement Value:Of the above global settlement value, provide a value or range of values you believe would constitute a reasonable settlement for the client and comment as to whether such figures are likely to resolve this matter for the client.
Recommendations:Provide direction that this case should take. Comment on whether to move toward resolution and/or continue trial preparation and the advisability of pursuing settlement.
Page 1 of 5